COFEPOSA

                                                            [Conservation Of Foreign Exchange & Prevention Of Smuggling Activities Act, 1974]

                                                                                            (As Amended Up-To-Date).

An Act to provide for preventive “Detention” in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. Foreign Exchange is vital for each us of a for charge of import of critical items and services. Foreign alternate could be gathered from numerous ways, which include export of products and services, remittances via way of means of NRIs, Persons Resident Abroad, Foreign Direct Investments etc.

The Conservation Of Foreign Exchange And Prevention Of Smuggling Activities Act, 1974 (COFEPOSA), which came into force on December 19, 1974, came at a time when India appeared a heavenly abode for wrongdoers with names like Sukhar Narain Bakhia and Haji Mastan, all baséd in big cities of the western coast of India, and operating innumerable sorties across the Arabian Sea.

In the era of 1970 to 1980, while smuggling activities have been on the top and the Foreign Exchange of India became at the bottom position, the Government of India became passed “COFEPOSA, 1974”

This act gives wide powers to the executive to detain a person on mere suspicion of smuggling and special protection by including the same in the 9th schedule to the constitution. It provides a preventative detention of a person before engaging in smuggling activity.

(1) The Central Government or the State Government or any officer of the Central Government, not below the rank of a Joint Secretary to that Government, specially empowered for the purposes of this section by that Government, or any officer of a State Government, not below the rank of a Secretary to that Government, specially empowered for the purposes of this section by that Government, may, if satisfied, with respect to any person (including a foreigner), that, with a view to preventing him from acting in any manner prejudicial to the conservation or augmentation of foreign exchange or with a view to preventing him from- (i) smuggling goods, (ii) abetting the smuggling of goods, (iii) engaging in transporting or concealing or keeping smuggled goods, (iv) dealing in, smuggled goods otherwise than by engaging in transporting or concealing or keeping smuggled goods, (v) harboring persons engaged in smuggling goods or in abetting the smuggling of goods, It is necessary so to do, make an order directing that such person be detained.

(2) When any order of detention is made by a State Government or by an officer empowered by a State Government, the State Government shall, within ten days, forward to the Central Government a report in respect of the order.

(3) For the purposes of clause (5) of Article 22 of the Constitution, the communication to a person detained in pursuance of a detention order of the grounds on which the order has been made shall be made as soon as may be after the detention, but ordinarily not later than five days, and in exceptional circumstances and for reasons to be recorded in writing not later than fifteen days, from the date of detention.

The maximum period for which any person may be detained will be one year from the date of detention under section 8 and the person may be detained under section 9 for 2 years from the date of detention. Provided that nothing contained in this section shall affect the power of appropriate Government.

The Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention for a total period-

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years.

(ii) sixty days, where the investigation relates to any other offence.

On the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released.

                                                                                                              COFEPOSA, 1974

1. Advisory Board- U/S-8 Of The COFEPOSA, 1974- The Role, Powers & Competence Of Advisory Board.

2. Authority- Competent Authority- Who is the Competent Authority empowered to pass detention order under the COFEPOSA, 1974- Who is empowered to pass an order to detain a person under the COFEPOSA, 1974-

3. Detention- Period of detention- Maximum period of detention provided under the Act- Maximum how long a person can be detained- What happens on the expiry of the detention period-

4. Detention- Challenge To the detention Order- Where the detention order is challenged and what are the potential grounds to challenge the detention order under this Act.

5. Detention- Detention of person already jailed- Procedure to be adopted when the offender is already under custody in some other case when the detention order under the Act was passed.

6. Detention- Place of detention under the Act.

7. Detention- Other important questions of law surrounding the issue of detention under the Act.

8. Detention- Legality & Justifiability Of COFEPOFA detention Order.

9. Detention- Grounds Of Challenge To COFEPOFA detention Order.

10. Emergency- What constitutes an emergency- U/S- 12A Of The COFEPOSA, 1974.

11. Smuggling Under COFEPOSA, 1974.

                                                                                                           Governing Legislations

                                                                                                  Detention Under COFEPOSA, 1974

1. S-2(b) COFEPOSA, 1974- Detention Order-

2. S-3 COFEPOSA, 1974- Power to make orders detaining certain persons-

3. S-4 COFEPOSA, 1974- Execution of detention orders-

4. S-5 COFEPOSA, 1974- Power to regulate place and conditions of detention.

5. S-5A COFEPOSA, 1974- Grounds of detention severable.

6. S-6 COFEPOSA, 1974- Detention orders not to be invalid or inoperative on certain grounds.

7. S-7 COFEPOSA, 1974- Powers in relation to absconding persons.

8. S-8 COFEPOSA, 1974- Advisory Board.

9. S-9 COFEPOSA, 1974- Cases in which and circumstances under which persons may be detained for periods longer than three months without obtaining the opinion of Advisory Board.

10. S-10 COFEPOSA, 1974- Maximum period of detention.

11. S-11 COFEPOSA, 1974- Revocation of detention orders.

12. S-11 COFEPOSA, 1974- Temporary release of persons detained.

13. S-12A COFEPOSA, 1974- Special provisions for dealing with emergency.

                                                                                   Legality, Justness & Fairness Of The Detention Order

1. S-5A COFEPOSA, 1974- Grounds of detention severable.

S-6 COFEPOSA, 1974-Detention orders not to be invalid or inoperative on certain grounds.

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